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Off the record conversations with employees

27/09/2013 | Nicole Humphreys

From 29 July 2013, employers and employees will be able to engage in confidential, "off the record" discussions and negotiations about parting ways on the basis of mutually agreeable terms. In effect, this allows an employer to have a conversation with an employee with the aim of terminating the employment under a settlement agreement (the new term for compromise agreements) without the employee being able to rely on details of the conversation as evidence in an unfair dismissal claim 

The new regime has certain limitations; Confidentiality applies only in respect of ordinary unfair dismissal proceedings. It does not apply where an employee brings proceedings for automatically unfair dismissal (for example, whistleblowing), or a discrimination or breach of contract claim. At this stage it is not known how tribunals will approach claims involving ordinary unfair dismissal together with one or more other claims. Another limitation is that if either party engages in improper behaviour, evidence of pre-termination negotiations will be inadmissible only if the tribunal considers it just. 

How can employers use this?

It is vital to get it right at the outset to ensure that any 'conversations' had remain confidential. 

Please call or email me if you'd like more information - or 01273 447069 (Direct line).

Nicole Humphreys
Head of Employment & Dispute Resolution Solicitor

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